Federal Appeals Court holds that women fired for taking too much time off for infertility treatments may invoke pregnancy discrimination act.

On July 16, 2008, a federal appeals court in Chicago held that women who need time off work for infertility treatments are protected under Title VII, as amended by the Pregnancy Discrimination Act.

In this case, a secretary had been fired after taking too much time off work for infertility treatments. Following an embryo transfer, the secretary’s physician had ordered her to bed rest for 20 days. When the transfer was unsuccessful, she requested more time off. She was subsequently laid off by her employers, who cited absenteeism for infertility treatments. The

Appeals Court disagreed that Title VII did not apply because infertility affects both genders. It reasoned that only women undergo time-consuming in vitro fertilization, therefore, they merited protection under the Act.

While this decision applies only in Indiana, Illinois, and Wisconsin, it does reveal that infertility is gaining increasing recognition as a medical problem. Massachusetts already recognizes that it is such a problem. The Commonwealth requires health maintenance organizations and insurance companies that provide pregnancy-related benefits to also cover the medically necessary expenses of infertility diagnosis and treatment when the period of infertility is greater than one-year. 

With this in mind, and to avoid liability, employers are advised to review their medical leave policies and ensure that they conform to the Pregnancy Discrimination Act.